Richard Rector | Prepare now to avoid conflicts

It's protest season again. It comes around at the end of the government fiscal year when a spike in the number of new contracts inevitably is followed by a wave of bid protests. The Government Accountability Office reportedly has experienced a 20 percent increase in protests in 2007 and continues on last year's pace of sustaining about 30 percent of decided protests. So the protest wave could be particularly intense this year.One of the hottest protest issues over the past couple of years has been an allegation that the contract winner has an organizational conflict of interest (OCI). GAO sustained a number of high-profile protests filed on those grounds in 2006, and although subsequent cases suggest that agencies are now being more careful, it has remained prominent in GAO's reported decisions.Federal Acquisition Regulation Subpart 9.5 provides the framework for OCIs in federal procurement. An OCI occurs when an organization is unable or potentially unable to render impartial assistance to the government because of the organization's activities or relationships with other individuals or organizations. Contracting officers are required to identify and evaluate potential OCIs, and "avoid, neutralize, or mitigate" potentially significant conflicts before awarding a contract.The FAR addresses four situations in which an OCI may arise: Those rules are frequently applied and interpreted in the context of bid protests. In a lead case from 1995, GAO identified three groups of bid protest cases in which OCIs typically arise: In the same case, GAO made clear that, in conducting an OCI analysis, "there is no basis to distinguish between a firm and its affiliates, at least where concerns about potentially biased ground rules and impaired objectivity are at issue." Thus a company can have an OCI ? and potentially be excluded from a competition ? based on the activities of its team members, subcontractors and marketing consultants.Agencies and contractors have implemented various techniques to identify, avoid and mitigate OCIs. These techniques include: Each of those approaches has met with approval in GAO decisions, but none is a silver bullet. In most cases, to avoid a protest down the road, contractors and agencies should employ a mix of techniques, depending on the nature and severity of the potential conflict.